[WikiEN-l] "Fair use" images of living people

[Matthew Brown]

On 11/15/06, Gregory Maxwell <gmaxwell at gmail.com> wrote:
> Because of the above point, I'm not sure how you arrive with "most
> I've seen" being clear cases of fair use under the law.  Could you
> clarify: I think we're either working with a different definition of
> fair use, or talking about a different set of images.

I think you slightly misunderstood the point I was making, which is
that vast proportions of the images on en: which are claimed as fair
use are actually cases of making up fair use justifications for images
which are free-to-use but have been made available under licenses
which have been deemed unacceptable for use on Wikipedia because they
are free to us but not necessarily free to all who could re-use our
text under the GFDL.

I'm not necessarily claiming that the fair use justifications hold
water - some do, some don't - but in a vast majority of cases in my
experience (which, granted, may not be typical) are not cases where we
would actually have to rely on a fair-use defense in court.  We
already have permission, generally through license terms which permit
an non-profit educational organisation/project like Wikipedia to use
the image.

This is definitely the case in e.g. most of the 'promotional image'
fair-use categories.  Legally speaking, we are taking very little risk
using those images, because they have generally been released free to
the media to use.  They probably do NOT have an explicit license on
them that is compatible with the GFDL, however, even though they are
de facto free for most uses.

There are other categories of claimed fair use on Wikipedia where the
fair use claim is actually one we'd have to use: e.g. historic
photographs, artworks still protected by copyright, etc etc.

I guess what I'm saying is that because the only non-free category
permitted on en: is fair use, if someone wants to use an image that
they don't have under a free license (under our definition of such)
they will attempt to justify it as fair use.  In that case, what the
fair use claim actually means is 'even though Wikipedia can use this
image for free anyway, commercial re-users may be able to use it under
fair use'.

I've done this myself in the past - coming up with fair use
justifications even though Wikipedia already has permission - granted
this was a couple of years ago and Wikipedia's image use policies have
changed quite a lot since then.

In most of these cases, Wikipedia is not in itself in any legal risk -
the free-content goals of the project may be at more risk, of course.

-Matt